The past few months has seen the roll out of the Covid-19 vaccination across the UK and while the availability and speed of the process is being questioned daily in the press, one issue which we have seen brought the foreground of discussions amongst clients is whether or not they can mandate their staff to have this vaccination.

Many employers are likely to encourage their staff to take up the vaccine, but the issue of whether this can become mandatory is an interesting one from an employment law perspective.

The justice secretary has said that it might be legal for employers to insist on new staff to be vaccinated but that this will be harder for existing members of staff. It is our positon that employers should be extremely cautious in taking such an approach at this stage, which might be discriminatory.

The requirement to have the vaccine might be seen in some industries as being a “reasonable instruction”, and it is likely that this will be the case in health and social care sectors. It is not unusual for workers in these sectors to be required to disclose their vaccination records as part of the recruitment process to ensure the safety of patients and others working alongside them. Therefore the COVID-19 vaccination is likely to fall into this category. Failure to follow a reasonable instruction can lead to a fair dismissal, most likely 'dismissal for some other substantial reason' (SOSR). So for example, a GP practice could well be able to rely on a refusal to seek vaccination to dismiss an employee, based on the instruction itself being reasonable. However, while the instruction may be reasonable, the process followed has to be fair otherwise the overall dismissal could be unfair. An employee would have to be given the opportunity to state their reasons for refusing a vaccine and an employer would have to assess the rationale of this

However, for other employers there is unlikely to be a situation where requiring an employee to be vaccinated is a requirement for their role, and particularly not one which would necessarily give rise to a fair dismissal..

Any variation in treatment between those who have and those who haven't been vaccinated may amount to indirect discrimination. For example, the current vaccination programme has NHS and social care workers being vaccinated first, followed by the over 80s, over 70s and over 65s. With the working population being older, there are potential indirect age discrimination issues for not recruiting a younger member of staff who has not been vaccinated. It is unlikely that younger employees or job applicants will be vaccinated before summer 2021, making the likelihood of someone arguing that they have been indirectly discriminated against because of their age (because it has not been open to them to receive the vaccine). Situations where a claim for indirect discrimination may be advanced might include where an employee cannot return to site without vaccination or a decision is taken not to recompense sick pay to an employee who has refused the vaccine who subsequently becomes ill with Covid-19.

Similarly, failing to recruit someone on the basis that they have not been vaccinated or have chosen not to be vaccinated could directly and indirectly discriminate against someone who is pregnant or breastfeeding. While the vaccination has been given the green light for these categories, medical advice is that it is down to the individual patient as to whether she wishes to receive the vaccine.

Finally, but just as important, requiring evidence of vaccination gives rise to significant data protection issues. Employers would have to consider why they need evidence of vaccination and whether it is appropriate for their business. An employee, or job applicant’s health records would be classed as sensitive personal data and an employer would need to consider its reason for holding such information and to whom such information was being disclosed.

If an employer wishes to introduce a “no jab no job” policy within its organisation, ultimately making a change to its existing employees’ terms and conditions, could only be done following a consultation process with staff and reaching agreement with them. In addition, it is likely that it wouldn’t be fair to introduce such a policy to all staff; those working from home or not in direct contact with wider members of the public for example.

Ultimately, it would be for an employer to exercise caution at this stage and reconsider this as an option once more groups within the country have been vaccinated. The PM’s spokesperson has said that such an approach would be discriminatory, and ultimately this won’t be definitively decided upon until someone challenges such a policy in tribunal.